Citation NR: 9722588
Decision Date: 06/27/97 Archive Date: 07/02/97
DOCKET NO. 95-24 540 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Whether new and material evidence has been received to
reopen the claim for service connection for left ear hearing
loss disability.
2. Entitlement to service connection for tinnitus.
3. Entitlement to an increased rating for post-traumatic
stress disorder, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from July 1965 to December
1968. The Department of Veterans Affairs (VA) Regional
Office (RO) denied a disability rating in excess of 10
percent for post-traumatic stress disorder (PTSD) in November
1994, and the veteran appealed. It later held that new and
material evidence had not been received for the issue of
service connection for left ear hearing loss which had been
the subject of a prior unappealed rating decision severing
service connection for it, and denied service connection for
tinnitus de novo, and the veteran appealed. The veteran
presented testimony before the undersigned member of the
Board of Veterans' Appeals (Board) during a hearing at the
Board in May 1997.
REMAND
There is evidence of record (including service medical
records) that corroborates that the veteran served for about
a year or more on an Air Force flight line. Additionally,
audiometrically, there was a puretone threshold of 70
decibels for the left ear at the 6000 Hertz frequency on
service discharge examination. The veteran is claiming that
his tinnitus and left ear hearing loss were noise induced due
to the acoustic trauma he experienced in service.
While the RO previously severed service connection for left
ear hearing loss on the basis that a disability for VA
purposes was not previously shown, there is now of record
medical evidence diagnosing left ear sensorineural hearing
loss, and the amount of hearing loss that is present appears
to satisfy the “disability” definition requirements of
38 C.F.R. § 3.385 (1996).
What is lacking, however, is an official VA audiometric
examination report that is certified for rating purposes, to
ensure with accuracy that a hearing loss “disability” within
the meaning of 38 C.F.R. § 3.385 (defines what amount of
hearing impairment is necessary in order for there to be a
“disability” for VA benefits purposes -- see Hensley v.
Brown, 5 Vet.App. 155 (1993)) is present, and a medical
opinion as to whether or not the current left ear hearing
loss disability, if present, is related to any incident of
service origin. The representative has requested a medical
opinion on the matter of whether there is a relationship
between it and the veteran's in-service noise exposure, as
well as on the matter of whether the veteran's tinnitus is
related to it also. A VA regulation takes notice of the fact
that tinnitus can be due to acoustic trauma. See
38 C.F.R. Part 4, Diagnostic Code 6260 (1996). It is
recognized by Court decisions that sensorineural hearing loss
can be also. Hensley. The Board will order an examination
to assist in a determination of the facts.
Next, neither the private reports of hospitalization for
psychiatric purposes in 1993 nor the report of the VA
psychiatric examination which was conducted in 1995 nor the
other evidence of record provides a basis upon which to
provide meaningful reasons for assignment of a particular
disability rating for the veteran's service-connected post-
traumatic stress disorder (PTSD), either under the rating
criteria which were in effect prior to November 6, 1996, or
under the rating criteria which became effective on that date
(see 61 Fed. Reg. 52695 et seq. (Oct. 8, 1996)), and that is
necessary.
Factors which are involved in the inability to rate the PTSD
based upon the evidence of record include the fact that the
veteran has been diagnosed with impairment from other
psychiatric disabilities, including alcohol dependence and a
personality disorder, and impairment from all of these was
factored into the global assessment of functioning that is of
record from 1993 treatment. Moreover, the veteran is noted
by recent medical evidence to be receiving ongoing VA
psychiatric treatment, so the records thereof should be
obtained and considered by the RO. Since the case is being
remanded to the RO, the RO should also consider the medical
records that were made a part of the record after the case
came to the Board.
In order to assist the veteran, the case is REMANDED to the
RO for the following development:
1. The RO should contact the veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him for
PTSD in recent years, and since service
discharge for hearing loss and tinnitus
symptomatology. With any necessary
authorization from the appellant, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran which have not previously
been secured.
2. The veteran should be afforded a VA
ear, nose, and throat examination by a
board certified specialist, if available,
in relationship to his claims for service
connection for tinnitus and left ear
hearing loss. The certified results of a
VA audiometric examination which is
adequate for service connection rating
purposes should be reported in detail.
The ear, nose, and throat physician
should review the audiology results,
examine the veteran, and render an
opinion if hearing loss and tinnitus are
present as to whether it is at least as
likely as not that either or both are
related to acoustic trauma he sustained
in service. The claims folder should be
made available to the physician prior to
the examination.
3. A VA psychiatric examination of the
veteran should be conducted by a Board
certified psychiatrist, if available.
The veteran’s claims folder should be
made available to the psychiatrist prior
to the examination. After reviewing the
claims folder and examining the veteran,
the psychiatrist should describe the
veteran's psychiatric status and render
an opinion with reasons as to the amount
of impairment that is caused by the
service-connected post-traumatic stress
disorder standing alone (exclusive of
any and all impairment that is related
to the veteran's prior alcohol
dependence, personality disorder, and
any other psychiatric disabilities). The
examiner must assign a numerical code
under the Global Assessment of
Functioning (GAF) scale in light of
impairment solely from the veteran’s
post-traumatic stress disorder, and
include an explanation of the numerical
code assigned. The report of the
examination should be associated with
the veteran’s claims folder.
4. Thereafter, the RO should take any
additional measures necessary to ensure
that the above is completed. Thereafter,
it should readjudicate the issues on
appeal. Its adjudication should consider
all pertinent evidence of record,
including that which has been submitted
directly to the Board; it must also
consider the provisions of
38 C.F.R. §§ 3.385 and 3.303(d) (1996),
and both the new (see 61 Fed. Reg. 52695
et seq. (Oct. 8, 1996)) and the old
criteria for rating PTSD.
If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the veteran and
his representative should be furnished a supplemental
statement of the case that complies with 38
U.S.C.A. § 7105(d)(1)(A), (B), and (C) (West 1991) and given
the opportunity to respond thereto. Thereafter, the case
should be returned to the Board, if in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need take no action unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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